DE FACTO


Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 23 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.

Under the Family Law Act, you and your partner may be considered to be in a de facto relationship if you’re are not married or related and you live together on a genuine domestic basis.

The fact that some couples may maintain separate residences but still have regular time staying over at each other’s houses doesn’t automatically mean that they are not in a de facto relationship.

In order to establish the existence of a legal relationship you need to prove:

  • The period or total period of the relationship was at least 2 years; or,

  • There is a child of the relationship; or,

  • That the person bringing the Court application made substantial contributions to the property and it would result in a serious injustice if an order was not made

So what happens if there are no children and you break up before the 2 year period?

What if you feel that you have contributed in some way to assets acquired during your time together?

Do you get your money back?

The test is whether or not the contributions by you were such that it would be unfair and unjust for the other party after the separation to retain all of the benefits that those contributions brought to the relationship.

They may take the form of a deposit to buy a house, physical labour for improvements or the provision of services such as babysitting or gardening.

The making of the contributions isn’t enough on its own to entitle you to be compensated. You must show that you will suffer a serious injustice if no court order is made.

A few recent cases have dealt with this issue. In Beaumont v Schultes the 36-year-old applicant with 2 children from a prior relationship moved in with the respondent who was a single tradesman of the same age.

The couple were together for 18 months during which time the respondent funded and purchased 2 residential properties and made the mortgage repayments.

The applicant, who was not a qualified labourer and was not contracted to provide labour to the respondent, claimed compensation for organising renovations to both properties carried out by friends and family.

Her claim for total non-financial contributions were $90,000. The court referred to the calculation as a guestimate with no solid evidence.

The court found that the contributions made added only very minimal additional value to the two properties.

The court also held that a failure to compensate the applicant for her claim would not result in a serious injustice to the applicant.

In the case of Adesso v Payton, the couple were together for 14 months. During that time, he worked as a pilot and was the sole financial contributor to the relationship. She stayed in the residence as homemaker and mother to her child from a previous relationship.

The couple were living in a heritage listed house that they planned to renovate. The house was owned by his mother.

She brought a claim stating her contributions were:

  • Maintaining the gardens and supervising a gardener;

  • Homemaking and cooking;

  • Project managing the renovations;

  • Assisting with his business.

The court found that the applicant made contributions but that her contributions could not be described as “substantial” in the sense of being over and above the ordinary.

She and her child had received considerable financial support from the respondent, including accommodation, private school fees and holidays. In this context, her efforts could not be viewed as out of the ordinary and no serious injustice would arise.

The area of law involving de facto relationships and whether they exist or not can be quite complex and often subjective.

Family Law Rockhampton

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